R v Morgan

[2022] NZHC 790

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2020-025-419

[2022] NZHC 790

THE QUEEN

v

ANARU MORGAN

Hearing:	13 April 2022
Appearances:	M B Brownlie for Crown H T Young for Defendant
Judgment:	13 April 2022

SENTENCING REMARKS OF MANDER J

[1]                 Mr Morgan, I will get you to stand at the conclusion not now, at the conclusion of my sentencing remarks.

[2]                 Anaru Morgan, you are for sentence on a charge of detention for the purposes of sexual connection upon which you were found guilty by a jury.1 You were acquitted on charges of unlawful sexual connection and rape arising out of the same incident.

Background

[3]It is necessary that I set out the circumstances of your offending.

1      Crimes Act 1961, s 208(b) — maximum penalty 14 years’ imprisonment.

R v ANARU MORGAN [2022] NZHC 790 [13 April 2022]

[4]                 You contacted a sex worker and arranged to meet with her at a motel room for the purposes of using her services. Shortly after your arrival, you became embroiled in a dispute at the doorway to the motel unit over the need for payment to be in cash. The victim told you to go and get cash but you refused. The victim tried to push you out the door and a struggle took place. You responded by pushing the door closed, trapping her arm in the doorway. Once inside the unit you pushed the victim onto the bed. The door was locked and you kept the key in your pocket.

[5]                 A further attempt by the victim to physically push you out of the motel unit that resulted in another physical struggle was abandoned after you referred to what she understood to be your membership of a gang, and which she interpreted as a threat. As a result of the situation the victim found herself, she changed her approach and said to you, “Okay, I do for you, but you not hurt me”. She described in her evidence how with some reluctance she had to give in to you because of her fear of being harmed and your apparent association with a gang. You are a physically large man, while the victim was a small 63-year-old woman who suffers from Bell’s Palsy.

[6]                 Insofar as your acquittal on the charges of unlawful sexual connection and rape are concerned, I consider that outcome likely resulted from how the victim subsequently decided to handle the situation and the fact you had contacted her for the purposes of having sexual relations. That evidence may have raised a reasonable doubt about whether there were not reasonable grounds for you to believe the victim was consenting at the time the subsequent sexual acts took place, although your evidence of having paid her is difficult to reconcile with the circumstances that led to the victim’s detention.

The three strikes legislation

[7]                 The charge upon which you were convicted, detention for the purposes of sexual connection, is a “serious violent offence” under the three strikes regime.2 In July 2013 you received a stage one warning after being convicted of indecent assault, and a stage two warning in March 2016, again, for a charge of indecent assault. Your present conviction therefore constitutes a stage three offence. As a result, this Court

2      Sentencing Act 2002, s 86A(34).

is obliged to sentence you to the maximum term of 14 years’ imprisonment prescribed for this offence.3 I am also required to order you to serve the maximum sentence without parole unless satisfied, given your circumstances and those of the offence, that such an outcome would be manifestly unjust.4

Personal circumstances

[8]                 Mr Morgan, you are a 27-year-old Māori man who identifies with Tainui on your father’s side. It appears your mother is of Ngai Tahu descent, although you disclosed to the pre-sentence report writer of being unsure as to her iwi.

[9]                 Details disclosed in the pre-sentence report demonstrate you have little support and you appear to be estranged from your family. You describe having only spoken to your mother once in recent times and of not even being sure where she is living. You have three brothers, one of whom you report being in custody in the North Island, and the other two to whom you do not speak or know their whereabouts. Your ex-partner and son left Invercargill shortly after you were remanded in custody and you do not know their whereabouts. When asked for contact details of any support people, you were unable to provide any.

[10]             Prior to being remanded in custody for this offending, your lifestyle appears to have been transient. At the time of this offending you were on release conditions, having been convicted of assaulting your partner. Because of concerns regarding further violence, you were living out of a car in compliance with a condition that you not reside with her. Before moving to Invercargill you worked briefly as a factory worker and after coming to this city you stayed at home looking after your son while your then partner worked.

[11]             You suffer from poor health. In particular, you suffer from rheumatic fever for which you receive monthly penicillin injections and are also medicated for gout. You suffer from weight difficulties and are described as having weighed some 203 kgs at the time you were remanded in custody on this charge, although that has since

3      Section 86D(2).

4      Section 86(D)(3).

considerably reduced. You are aware that you need to continue to lose weight for the sake of your health.

[12]             For a person facing the consequences of a third strike, your criminal history, while moderately serious, comprises only five convictions beginning with the stage one indecent assault offence in 2013. Relevantly, there is also the second strike indecent assault conviction in 2016 which is straddled by two family violence assaults in 2015 and 2019 respectively.

[13]             I have received a cultural report which provides details of your upbringing. You described your childhood to the report writer as hard, and that your parents separated when you were seven years old. Both you and your siblings were removed because of neglect. As a result, you were separated from your other family members and placed in four different family homes. Your father and mother served time in prison. You were finally placed with your great-grandmother when you were nine years old, but you describe her as a hard lady who, while providing food and a roof, did not extend any love or affection.

[14]             You also described having received physical hidings and “being beaten like a man” from the age of nine years by your uncle. This is said to have resulted in you being left bruised and bleeding. You also disclosed having been sexually abused by a family member when you were 11 years old. Your schooling was limited and you were expelled when aged only 14 years. You also refer to being the subject of racist bullying which you responded to by using physical force.

[15]             You refer in the report to having returned to your father’s care for a year but that there were no rules or boundaries. You began smoking cannabis at 12 years old and drinking alcohol at 14, at which time you first came before the Youth Court. You served a sentence of home detention for the stage one indecent assault when you were 19 years old and were first sentenced to imprisonment two years later for common assault.

Victim impact

[16]             Your victim has described that the offending has left her constantly worried when she is seeing clients because she is not sure what will happen after what you did to her. At the time of the offending itself she felt very scared and sustained some injuries. She has expressed a loss of trust in people and experiences stress and suspicion when she sees clients.

Appropriate sentence but for the three strikes regime

[17]             Notwithstanding the application of the three strikes regime, the issues that arise out of that legislation mean it is necessary for me to consider the sentence you would otherwise have been liable to receive because I need to determine whether it would be manifestly unjust to order you to serve the maximum penalty without parole5 and the potential implications of the New Zealand Bill of Rights Act 1990.6

Aggravating features

[18]             On behalf of the Crown, it has been submitted that the aggravating factors of your offending are the victim’s — or were, the victim’s vulnerability, she was alone and much smaller than you; there is also the actual violence inflicted and the injuries she suffered. To some extent that might be considered intrinsic to the offence, but your detention of her involved you assaulting her and she suffered injuries that included bruising to her arm when you shut the door on her and swelling to her face around her eye as a result of the struggle.

[19]             It is submitted that premeditation is an aggravating factor because you came to the address with no financial means of paying for the victim’s services. The victim’s evidence was that she told you on the phone when making the appointment that it was cash up front. However, it is not clear whether before you arrived that you were intent on having sex with her without paying for it, as you sought to offer a bank card. The prelude to your offending is not comparable to those cases where there was a preconceived plan to abduct or detain a victim.

5      R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602 at [108](d).

6      Fitzgerald v R [2021] NZSC 131, (2021) 12 PRNZ 739 at [3]–[4].

[20]             The impact on your victim is also stressed by the Crown. The victim was clearly shaken by what happened to her and other witnesses observed that she was in a distressed state after you left. There is also the fact that at the time of this offending you were still subject to release conditions from your previous term of imprisonment.

Starting point

[21]             The Crown has referred me to two previous sentencing decisions, R v Adams and Lepper v R, which it submits provide some assistance.7 The circumstances of each case will invariably differ and care is required when applying cases to a different set of facts. Adams is a notably more serious case that involved the dragging of a woman into a car where she was sexually assaulted and subject to a physical attack that included being choked and her eyes gouged. She was only able to escape by rolling out of a car as it travelled at speed. A starting point of eight years’ imprisonment was adopted.

[22]             In Lepper, the victim was the subject of a premeditated plan to abduct a young woman off the street at night. The offender grabbed her and attempted to force her into a van but she struggled sufficiently to successfully fend her attackers off until nearby residents came to her assistance. She suffered abrasions, lost clumps of hair and suffered from ongoing psychological effects as a result of the attack. The case in the Court of Appeal concerned an appeal from a sentence of preventive detention but the sentencing Court indicated the alternative finite sentence that would otherwise have been warranted would have attracted a starting point of six years’ imprisonment. Notably, the Court of Appeal remarked that “a somewhat higher starting point could have been adopted”.8

[23]             Mr Young has drawn my attention to another case, R v Keen, where a successful Solicitor-General’s appeal resulted in a six year starting point.9 In that case the offender approached a lone female on a track and offered her money for sex. She declined and attempted to run away but the offender chased her and pinned her to the ground. He covered her mouth when she attempted to scream for help before running

7      R v Adams [2018] NZHC 1386; and Lepper v R [2016] NZCA 209.

8      Lepper v R, above n 7, at [47]–[48].

9      R v Keen [2010] NZCA 112.

away. A concerning aspect of that case was that the offender had been targeting women in the same area for the previous two months and the offending was clearly premeditated. However, being a Solicitor-General’s appeal, the starting point must be viewed as conservative and falling towards the lower end of the available range for the particular offending in that case.

[24]             The Crown submits that your offending would have ordinarily attracted a starting point in the range of six years’ imprisonment. While Mr Young contended for a lower starting point on the basis that Lepper and Keen were worse cases because of the evident premeditation, he did not exclude a six year starting point as being outside the available range, albeit at the upper end. Having weighed the issue, I consider your offending would attract a starting point of six years’ imprisonment.

[25]             A stern uplift would have to be imposed to mark your previous convictions for indecent assault and other violence. The present charge is capable of being viewed as a continuation of a pattern of offending. I will discuss the circumstances of your prior offending shortly. At this stage, it is sufficient to note that, when coupled with the present offending, they reveal a concerning predilection on your part to assault women for the purpose of achieving a sexual objective.

[26]             Mr Young informs me that you are motivated to learn about your cultural roots and Māoritanga, and to seek counselling for your own past experience of sexual abuse. Your counsel also stresses your youth at the time you committed the indecent assaults (18 and 19 years respectively). However, you continue to deny your present offending and, in the absence of being prepared to take responsibility for your actions, you are assessed as being at high risk of re-offending in a sexual manner. You show no real insight into your current offending. As a result, I consider this further episode of offending requires to be met with an uplift of 15 months’ imprisonment.

Personal mitigating circumstances

[27]             Mr Young argued that any such increase to the starting point would need to be balanced against a discount for the matters raised in the cultural report. I accept that the hardship and deprivation of your childhood and youth has had a marked effect on you and your behaviour. Family violence, State care, a lack of positive role models,

and both sexual and physical abuse, are all features of your background. You are disconnected from your culture and have almost no real relationship with your whānau and whakapapa. Your early exposure to drugs and alcohol, the neglect you have suffered from your unstable upbringing, and lack of schooling must also be acknowledged as having had a bearing on the position you presently find yourself. These considerations require to be marked by an approximate 15 per cent discount.10

Minimum period of imprisonment

[28]             It follows that, but for the operation of the three strikes regime, the sentence you would otherwise have likely received would be in the region of six years. The Crown submits that a minimum period of imprisonment (MPI) of two-thirds of any such sentence would need to be imposed. Given your lack of remorse and, as matters presently stand, your limited prospects of rehabilitation, the gravity of the offending, and your previous history of assaulting women, I would have to conclude that the ordinary period before you would be eligible for parole, being one-third of any sentence, would be insufficient to meet the protective needs of the community and to deter you from committing the same or similar offence. I agree with the Crown that a MPI of two-thirds of the sentence that would otherwise be imposed is required — that would amount to an MPI of four years.

Maximum penalty

[29]             As a result of you now being before the Court for sentence on your third strike offence, the Sentencing Act provides me with no discretion but to sentence you to the maximum penalty of 14 years’ imprisonment. However, the Supreme Court has held that a sentencing court will need to consider whether such an outcome would breach s 9 of the Bill of Rights Act, which prohibits disproportionately severe treatment or punishment.11 Because Parliament cannot have intended such a result, I would, in such an event, be justified to sentence you in accordance with ordinary sentencing principles.

10     See Nuku v R [2020] NZCA 11 at [37].

11     Fitzgerald v R, above n 6, at [3]–[4].

[30]             In reserving that residual power to the sentencing court, the Supreme Court opined that cases where the consequences of a third strike would breach the Bill of Rights Act will be rare — although I note the Court of Appeal has since observed that cases that may meet the required high threshold may not, in practice, be so rare.12 In order to meet the high threshold of disproportionately severe punishment, the sentence must be so out of proportion to the particular circumstances as to cause shock and revulsion. It must be so excessive as to outrage standards of decency or shock the national conscience and likely put New Zealand in breach of its international obligations.13 A sentence which is simply severe, disproportionate or manifestly excessive will not meet the test.14 In Fitzgerald the majority found the imposition of a sentence of seven years’ imprisonment for offending that would not otherwise have attracted a jail term met that threshold.

[31]             Mr Young argues that the test set out in Fitzgerald has been met in your case because of the level of sentence you would otherwise have received but for the effect of the three strikes legislation. He relies on recent cases of the Court of Appeal that have held that third strike sentencing is capable of producing grossly disproportionate outcomes when the otherwise appropriate sentence for the index offending is compared with the maximum penalty.15

[32]             In Phillips v R the Court of Appeal identified factors that are likely to play a significant role in determining whether or not a sentence imposed under the three strikes legislation breaches s 9 of the Bill or Rights Act. These include:16

(a)Any difference in the nature of the sentence that would otherwise have been imposed and the fact that a prison sentence must be imposed under s 86D(2). This consideration is illustrated by Fitzgerald where, in all likelihood, a non-custodial sentence would have been imposed, compared  to  the  prison  sentence  that  was  imposed  pursuant  to  s 86D(2).

(b)The difference between any prison sentence that would have been imposed but for the three strikes regime and the prison sentence

12     Fitzgerald v R, above n 6, at [219], [231], [236] and [245]; and Matara v R [2021] NZCA 692 at [73].

13     At [79], [167] and [239].

14 At [161].

15     Matara v R, above n 12, at [73]; Phillips v R [2021] NZCA 651; and Mitai-Ngatai v R [2021] NZCA 695.

16     R v Phillips, above n 15, at [28].

imposed pursuant to s 86D(2). This may involve more than the multiplicative difference between the two sentences. It may also be necessary to take into account the actual difference in years between the sentence imposed and that which would otherwise have been adopted but for the three strikes regime.

(c)The nature of the offending. This requires an assessment of whether or not the defendant is plainly an inadvertent and unforeseen casualty of the three strikes regime.

[33]             In your case, Mr Morgan, I consider the matter is finely balanced. As is apparent from the exercise that I have already carried out, your present offending would attract a considerable period of imprisonment, and your propensity to physically offend against women accords with a need to protect the community in a way that may arguably have been envisaged by Parliament as being the purpose of this legislation, whatever the merit of that approach. Neither the present offending for which you are before the Court, nor the circumstances of your first or second stage offences are comparable to the situation faced by the Supreme Court in Fitzgerald. To illustrate that point, I need to set out the circumstances of that prior offending.

First stage offence

[34]             Your first stage offence was an indecent assault on 26 December 2012. It occurred at the Waikato hospital. Your victim was a medical staff member who entered a hospital parking building. You followed her into the carpark’s lift. She was concerned for her safety so immediately exited the lift and attempted to avoid you by walking along various staircases and ramps. However, when she entered another level of the building, she saw you standing adjacent to the lift. You reacted to her presence by running towards her and, upon reaching her, you grabbed her from behind. You physically restrained her and proceeded to indecently assault her by fondling her vaginal area for several seconds on the outside of her clothing. The victim physically resisted and, using her elbow to strike you in the stomach, managed to break your grip and escape. You were sentenced to seven months’ home detention with special conditions.

Second stage offence

[35]             The second stage offence comprised another indecent assault that was committed by you on 4 August 2014. On that occasion your victim was a woman pushing a pram carrying her six-month-old child. You had positioned yourself in a public access walkway between two streets adjacent to a school. This was the route the victim regularly took to walk home. You appeared to be crouching down tying your shoelaces. After the victim walked past you, you approached her from behind and reached between her legs with your hand. You placed your hand over her vaginal area on the outside of her clothing and the other hand on her buttocks. She screamed and resisted your actions. This offending resulted in you receiving a sentence of two years’ imprisonment.

Analysis

[36]             These previous offences, when combined with the present offending, demonstrate a predilection on your part to attack women for the purpose of achieving a sexual goal. You have not demonstrated any remorse, nor any real understanding of the effect your offending has had on the victim in this case. The stage one and two offences perhaps fall into the category of moderate seriousness which, while not involving particularly intrusive sexual acts, did constitute premediated assaults on lone women in isolated public locations. I do not consider they can be passed off as youthful transgressions or the product of poor decision making. The current offending must be categorised as serious and tends to suggest, together with your convictions for assault in a domestic context, a willingness to resort to violence against women in order to get your way.

[37]             In the absence of the third strike provisions applying, based on a potential starting point of six years and a two-thirds MPI, you would have to serve a sentence of four years’ imprisonment and could not be released after that unless the Parole Board could be satisfied that it would be safe to do so. Because of the approach I would take to the question of whether it would be manifestly unjust to require you to serve the maximum sentence of 14 years without parole, you would be eligible for parole after the elapse of only another seven months’ imprisonment. So the protective effect of the two sentences is almost the same and that sentencing objective — the

protection of the public — appears to be achieved by whichever sentencing approach is taken. However, disparity between the sentence of six years and the maximum of 14 years remains grossly disparate. It represents over double the sentence that would otherwise have been imposed.

[38]             I consider the imposition of a sentence that is eight years longer than that which would otherwise have been imposed meets the test set out in Fitzgerald, at least as it has been interpreted and sought to be applied by the Court of Appeal in decisions that have been delivered since that judgment, to which Mr Young has referred me. In those cases, appeals have been allowed on the basis that to impose the maximum for the third strike offending or to sentence an offender without parole for second strike offending would breach s 9.17 A combination of factors are present in those cases, including the nature of the offending, the personal profile of the offender, and the grossly disparate effect of the mandated sentences in comparison to that which the offending would ordinarily attract. To varying degrees, those types of considerations are present in this case. The offending, when viewed overall, was moderately serious, at least on a comparative basis. But the difference in outcome is, as I have said, grossly disparate.

[39]             Importantly, there is also your extremely disadvantaged background. The unfair punitive effect of imposing the maximum sentence is substantially aggravated when placed against your personal circumstances, both past and present. The sentence under the three strikes regime that I would be required to impose would be significantly higher than the sentence that would otherwise be reached by applying ordinary principles, and I consider that disparity which would lengthen your sentence of imprisonment by 10 years meets the necessary standard of disproportionality to amount to a breach of s 9 of the New Zealand Bill of Rights Act. I therefore consider that, in the circumstances of your case, I am obliged to proceed to sentence you in accordance with ordinary sentencing principles, which I have already reviewed earlier in my sentencing remarks.

17     Matara v R, above n 12; Phillips v R, above n 15; and Mitai-Ngatai v R, above n 15.

[40]             For completeness, I refer to the issue of whether it would be manifestly unjust to order you to serve the maximum penalty of 14 years’ imprisonment without parole. It follows from my remarks that I consider there is a clear disparity between sentencing you to the maximum term of 14 years’ imprisonment without parole and the sentence you would otherwise have received, albeit with an MPI, and that such a disparity cannot be justified. As I have already observed, to impose the maximum term without parole carries the possibility of you spending an additional 10 years’ in prison before being able to be released, and the Crown rightfully acknowledges that manifestly unjust outcome.

Sentence

[41]Mr Morgan will you now please stand.

[42]             On the charge of detention for the purposes of sexual connection you are sentenced to six years’ imprisonment with a minimum period of imprisonment of four years. On the other charges of resisting police and refusing to provide particulars, to which you earlier entered guilty pleas, you are convicted and discharged.

[43]You may stand down.

Solicitors:
Crown Solicitor, Invercargill